Related to speech and expression, social, political, artistic or sometimes none of the above. Sometimes the tradeoff society where we want to speak only what we believe but we may adapt where speech became before us but we were credit for what we create. This involves a balance between unrestricted speech and sounds against other values. When does unwanted speech crossed the line into criminal threat . Is when we can determine whether it is a threat and intent on the speakers part matters. Turning to another case, the freedom of conscious and wish to speak should the government mandates access to the speech or public Accommodations Office conflict . When must be having part of another encourage creativity while incentivizing the work . These and more are raised and partially answered by cases and articles you will hear about next. Will briefly discuss the review to set the stage of you all for discussion and keep the bios short because there full bios at the back. First of, clay calvert, former director of the First Amendment project in florida and being on counterman versus colorado. The annual constitution symposium, im going to end a little bit of time for this afternoon talking about the Supreme Court decision this june and criminal law case of colorado. The really counterman for online talking causing serious emotional distress. Specifically over the course of several years hundreds of Facebook Messages colorado singersongwriter with whom he has no prior relationship and a total stranger called and not off permanently and it will tell you. The messages and new heard movement in several times on facebook but kept coming back so he kept powering them in cost to cancel several performances and turndowns in the colorado jury convicted the online stock and causing serious emotional distress. Protected by the First Amendment guaranteed free speech because they argued this is not rise to the level of unprotected true threats of violence. Stocking conviction could not stand because his works did not fall into one of the few categories United StatesSupreme Court held protected by the First Amendment mainly true threats of violence. When exactly announced the threat of violence outside the production. Compared to other categories of speech might think about, incitement or obscenity, the truth is relatively new as the Supreme Court has recognized, in 1969, the court overturned the conviction for Lyndon Johnson during 1966 antiwar rally to the Washington Monument so complaining about these, 18yearold watts told the crowd they ever make me carry a rifle, but first man to sell, they laughed. The court deemed political hyperbole stresses the First Amendment does not safeguard true threats which failed to define in 1969 in 2003 the court offers partial definition and observed, states with the speaker means to communicate a serious expression of intent to commit acts of unlawful violence for particular individual or group of individuals. What does that really mean . It was unclear they disagreed with this for the period that actually required to attend to threaten someone they communicate a message that came to be understood as starting person to whom it was received . The court tackled. The speakers mental awareness about statements in their. Doesnt matter usable present in a message threaten an important position. A drone might be misunderstood, may never have been intended a way normal fears for being will be able to have the censorship and expression of statement protected by the First Amendment. Fear of liability as sometimes they are sensitive times when it comes to sort out whats a threat. Objective reasonable standards can turn out to be subjected left in the hands of jurors. Taking into account speakers state of mind regarding the threatening nature sometimes me safeguard this and prevent a person from being convicted is not morally culpable. On the other hand intended to protect people from certain harm in the Supreme Court stated the design to protect individuals from destruction that it engenders and the balance will in fact occur so the jury was not asked to consider anything about his state of mind what he knew or incentivizing statements. What he thought did not matter. All that counted was if it would find it threatening so courts should consider the state of my turning their awareness or lack there of, threatening nature of what they communicate. He could try to balance the First Amendment protecting speech on the one hand the interest in protecting the victim from a terrifying life disrupting harm on the other from threats and heres what the Supreme Court concluded. Ive just a story and elena kagan and barack obama of 20 during practices from across the ideological political spectrum, namely chief Justice John Roberts and samuel alito, to push appointees and the donald trump appointee Ketanji Brown jackson, joe biden of 20 concluded the state of mind these must be considered when deciding the threat. More specifically this is the rule the Court Created quote consciously disregarded a substantial Risk Communications could be viewed as threatening, three parts. Consciously disregarded, and risk and threatened by recklessness. Recklessness has done more than make the mistake and accepted substantial risk of harm because the jury was not asked to consider this, the Court Conviction back to colorado retried without the Standard Wheel or such, a lot of interesting matchups between the justices, believed a higher level of recklessness in this case specifically for believe the government must prove purpose to put a person in fear of violence. Its not enough the speaker was aware of substantial risk of harm will disregarded. In their view, the government must prove speaker actually intended to make the target feel threatened so it should be noted somewhere in between the highest level with intent or purpose and power level, there is a number level of knowledge, the speaker might not have intended to put a person in here but instead knew the target would be fearful. They both issued the opinions. They believe the objective state of mind about threatening meaning whether intent, purpose, knowledge or recklessness, basically irrelevant. All they must prove is a reasonable was your full. This is the least free speech from the possibility and uphold the production. The bottom line being the court adopted recklessness standard or mental state. The government must demonstrate a defendant consciously disregarded a Risk Mitigation is viewed as threatening violence. Those five justices nominated by four president s from two different parties so free speech can unite despite their political ideologies although we will hear that was not the case with this. Next up is christopher greene, professor of law at the university of mississippi. That was a beautiful segue interrupted by 303, one of the big cases and conservative versus liberal, i got a lot of press i think, most people are pretty familiar with it but should colorado five years ago in the masters cake shop, a free exercise case, for special election caps off, 14th amendment so masterpiece they said is going after this fact philip because of hostility to religion, but the 303 case, about websites. So if you go to a wedding, a weird one so if you got something to be green, my grandmother was there, 1 foot turned green so anyway, this, and what, what she had this idea, and the winning and will want to see only the this service so i told my kids and they said who were the people who wanted a website . There werent any people because she colorado would come after a lot of coverage when it first came out and gave the impression the case about whiteness which it was not but she obviously had no controversies with the state of colorado but no particular couple came saying we want a website lori smith conditions, she filed a federal lawsuit on this while from getting in the lori smith house monopoly on lori smith, as part of this wild theory that didnt get much on the second is that maybe there will a firm, fox kind of wacky and that was right thing it violates me right under Employment Mission and overruling we are going rewrite this and its about the there was another brief theory that i was on and it was back so is very at Harvard Law School and some friends of his this was about the in pretty extensive form. As you read the opinion spending like three or four pages really going like singers right in all of these cases saying what is a theory . My theory is we should reinvigorate Public Interest doctrine from illinois as applied to samesex wedding cases, if you could get service somewhere else with no additional hassle at all, access due to relevant goods, theres no reason for a particular person to apply this other than the desire to have that persons view suppressed because thats not a legitimate interest unless you have scarcity, you dont have a genuine reason. Senior and his colleagues say that not the right history of public accommodations law. They say public accommodations is about to independence, specifically they say business offers to serve the public, any business at all offers to serve the public, its subject to serve all equally so not limited to any particular kind of business. This is contrary to something Supreme Court said in 1923. Charles says one does not devote business to public use will close with Public Interest merely because of commodities and cells to the public. Why wouldnt the court want to cite this case from 23 . Of course its phobia. You dont have to go full locker to get there so what i want to do and what a lot of scholars want to do is have a tradition and equal citizenship approach to economic entrepreneurial liberty as well as other things under the 13th amendment to First Amendment . Was the first word . Congress. Youre not going to be able to go and its going to be proper. Why . 1791 federal government that has no power over occupation. How do i know . They didnt have the power to prohibit slavery. Article one section plus one so if we reinvigorate the Fourth Amendment and go back to tradition accommodation, youre going to find these rationales. He find some cases saying public accommodation for businesses that serve in the public and you will find cases saying these laws are for accommodation of people whose circumstances of blinds them to trust particular people so it is a case from 1703. From 1701 anyway, theres a lot of historical debate and i invite you to read the article. Basically they look at a bunch of cases saying its for businesses for everybody and they look at these, dont look, they dont mention cases that say it is tight circumstances of scarcity. Basically i mentioned online or twitter or something saying about cox, what about 19th century cases that talk about scarcity . There are more cases that talk about serving the entire public rather than different rationales what we should do is look at all to see if you can have integrated rational self 1701 case written by the same author the way we should think is this. If you are a railroad or surveying difficult scarce situation and you make it an offer to the entire public, come on the railroad and use no particular places and then you say its going to be an extra 3000 in, store your laptop in a safe or something, you got them over a barrel. The offer to the public causes the scarcity which requires the public accommodation so thats my story of how you put the rationale together. Certainly look at charles wolf, that is the picture you get, there are particular pieces of evidence, line in the 1914 article for the article says nowhere is monopoly suggested distinguishing characteristic that she reads saying nowhere in the discussion of public accommodation in the entire history of the 19th century is discussed talking about the early 18th century, hes not saying it had nothing to do with monopoly, hes deciding the Historical Foundation so anyway, theres a bunch of details if youre interested which of course you should be and virtually all of you are, im sure but the thing that is most encouraging, not criminal from the justice and this long distance, it makes me think that it is expected on this ground and given the weakness, it seems like this battle has come maybe another five years. Finally, we have gregory, associate professor of law at the university of baltimore senior litigation counsel recently served as resident associate justice of the Supreme Court speaking on to intellectual property cases and jack daniels properties. Its been ten years and its nice to be back. Its kind of odd to me to be on this panel because First Amendment issue in this case are sometimes very secondary in these and construction of case so to intellectual properties but in both cases it was kind of the undercurrent because they claimed to have the First Amendment notwithstanding this so let me talk about the cases and why this was one case where the First Amendment concerns the short end of the argument in my own to begin with this easier case, so you know the trademarks unit if you dont see the label, 90 degrees or we all know dennis had particular number seven so you see all of the features and that is the purpose. You have trademarks and they recognized. You could be driving down the highway and you see it down the road and you underneath and you see a car and they need to come up will. They make these and one was shaped is where bottle was formed similar to jack daniels law, its wrong and instead of saying Tennessee Whiskey for this recipe, it says number two on your tennessee carpet and they call this bottle not jack daniels, they call it bad daniels. Apparently he didnt see the humor in this so they sued on Trademark Infringement meaning these consumers, the joy would come from the same producers as jack daniels and they sued arm this word, disparagement of the mark. There was a trial and it included they are confused or there is this confusion and trademarks over and i teach in this language no space is a joke, right . And brain cells knows thats what happened. It is that humorous sarcastic entry into the market and thats how it got to the. And they rejected that here. Essentially sure, there may be instances where you do need to talk about the mark and use the symbol to comment on the mark so the movie super size me, super size is a trademark of mcdonalds and in those, not to sell your own, mcdonalds has terrible food in her a good car or your own but as a comment, of course you cannot make commentary on anything without naming that thing. I suppose the one that uses assistant not really based on this, you could describe that but that is inefficient to set Apple Computers are good, bad, indifferent, whatever. Justice kagan says there is this narrow set of circumstances where youre not having this mark but it is used in another way and there is this case that came up a while ago. He made a movie and authorized this, you are using my trademark to self your own movie but how else are you going to shoot a movie about a couple who model their life . Although you use this trademark, its not about her, and it is way too far. In every trademark dispute, from now on the first step of the inquiry is, is there a potential First Amendment value allowing people to speak . There is a value about humor and justice came in, thats not how it works. First, figure out if you are trademark violation and may be you will be able to use the First Amendment defense even if it is exists. By the way, the defense, come on, Everybody Knows this is a joke, Everybody Knows that humor but if that is true, it seems odd was a matter of fact finding, the court could be confused. Of course its a joke, of course just making fun of jack daniels but we know this defense, im not quite sure this is the case and if you understand, through for the photographed, it is very helpful in what they are debating about. One of my professors said a picture is worth a thousand words. People can look at that so a famous photographer took a photograph of the late artist, she writes a onetime use and she paid money and took the photograph and got the license turned the photograph over who adjusted it and rotated it totally within permission granted and they printed the article and transformed the photograph and that was that but so loved the photograph and numerous colors based on the photograph and etc. The fact that one died in the rush to publish more studies, a lot of magazines were speaking for the period so they published the 2. 1, it was not initially in vanity fair and the photographer instantly recognizes this and send a letter and what are you doing . This is my photograph, my copyright. At the very least you ought to pay me loyalty and this is america. They just went to court and we are not infringing and even if we are, we have a First Amendment sketch to write because our work is transformed and that was the argument and kagan wrote this opinion a few weeks prior in the First Amendment but side is kicking and robert in the opinion so he writes this photograph here is kind of the baseline. Its not just slap some paint and holiday. Those of us have seen, thats not nice but that is not all there is to it. The question is not merely whether it resulted in a different work of art, of course it did. The question is whether its the type of difference. There is a real tension and it requires or reserves this work but on the other hand it allows others to use this. This is the real you want to comment on others movies and etc. And just as kagan said i quote, majority should go back to school. That is, the tone of the opinion but ultimately they dont really get that issue. Instead, they talk about various tests and with the world look like with copyright law applied in lawrence and whether or not the great painters but kind of just as kagans points, both photographs and these paintings serve the same purpose, i think both are there arguments. These points i make in my article is that people tend to forget copyright, trademarks and trade secrets, they are property. If you recast these cases as a property case, they start making sense because, of course get a bunch of Property Owners and go outside right now and protest whatever you want to protest. He cant quite catos lobby, you can do it outside, cato is also, you can use catos name but you cant in the auditorium unless invited so trademarks and copyrights, you can talk about how good or bad mcdonalds is, how could or bad jack daniels is, but you cannot use the trademark itself to sell your own. You cant try to rewrite somebodys Properties Like you cannot in the lobby because its cold outside or hot. So you cannot take jack daniels bottle to your own would be better. You cannot take somebody off the photograph of your own baseline. You can make your own painting different and say its a terrible photograph for a great photograph or do it this way or that way but you cannot take that photograph and repaint it and say now i want to buy my product because i have a different cake. Not on print, not on the outside but on the front. If you look at both of them majority concerns but also saying we have majority renaissance, would never have multiple casings, but thats not true. Everybody over 100 years ago, everyone is free to copy the copy is private property. If you think of will both make sense and it could have been 20 pages shorter and way earlier my thanks to all three of our panel, he say cato is terrible but we do invite them to take that occasionally. I remind people watch it online, and take this on the webpage using cato, ill start by asking panelists have russians. This First Amendment case which i think is what it boils down to and the relevance and the Supreme Court case coming out, efforts by state governments for the social media platforms they have to speakers against their will and interferes with their editorial decisionmaking. Florida law says many qualified candidates for state or local office cannot be platforms, regardless how many times they violate terms of service on the platform with over 100 million views in revenue, those are right cases. Why should they be compelled to post an individual and give him platform after the individual repeatedly violates their rules and terms of service. We usually think about government but now we say social media platform in its own policy so you are being compelled to post speech when you dont want to post it so will be interesting and is limited to a want to compel whats conflicted with religious beliefs or is it a combination of policing recently antiabortion Pregnancy Centers could not be enforced to convey the message and you have a right to free or lowcost abortion and saying you are not part of the union you cant be compelled to pay money, we see this evolution so i think it is this important down the line, assuming these cases, hes like the phoenix so i think it will, i think 303 created this. The ground about whether facebook and all these things are like a railroad is a super important issue in one of the opinions that really got into this issue, twitter and on the affected of Public Interest . Justice thomas and biden versus freespeech institute, sounded like it was a bridge, build your own facebook. Its like just swim across the stream. Remember myspace . And probably looks like a railroad back in the day and facebook came along. A lot of people unhappy with that. I never know exactly but people are trying. I think ones like that the case where i like to talk about charles wolf . Thats where i think it should be thought. I think i would take a slightly different angle. Facebook and google, are they post or common . For liability i would say i just post, people post stuff. If you send me a notice, i will take it down but my hands are clean here. But you got to behave like that. I am choosing to speak or edit or editorial is now they will have to pick elaine and the court will have to pick which one it goes down to and section 230 preempts the underlying issues there in florida or texas or do we take the First Amendment part because the platforms would argue editorial policies and allow for speech or dont. We are creating a speech of unity establishing what we allow so it will bring those questions. A lot of ways with the federal government putting this pressure, what are they doing, are they departing from this approach properly . It seems like they will take those. I would think it would make sense for those on the same term to make it coherent but one might be before the january cutoff. The internet based service providers, it is going to be a panel later on and that will be huge assuming they take it in Justice Alito on friday decided to delay enforcement as modified until basically midnight friday and the government, the plaintiffs have until wednesday to file in response to the Biden Administration so that is the case on how much leverage and pressure and persuasion you can put on providers before it crosses the line by social media providers in the First Amendment which raises the First Amendment action question. Ill shut up. I will note, cato filed the circuit and one thing we focused on was political and the monopolized media on the conversation. Now you have the conservatives and governors of florida and texas saying we have to mandate access to the social Media Companies so it is interesting, is it ideological or which media is on your side. The party got a couple of questions online. Public accommodations law, would it be okay for africanamericans as long as there were a nearby restaurant, why not . It seems general principles that govern this are going to apply the big original source that iive was the distinction made in 72 between private social rights and public rights in and those were rays cases so some conservative folks say what we want is a different set of principles and disputes about samesex marriage then social interaction and i certainly think there is a big difference between those but in terms of do you have to have scarcity . If you look at the title to discussion, legislative history civil rights act, he is very entitled to illinois and chief justice hale written in the 17th century so i would apply the same rule to the race cases. Restaurant will have a physical footprint different than an online situation so figuring out when and whether scarcity will be a different question or an episodic thing for bakery for a wedding so one restaurant at that stop, it will be a lot easier, it should be easier to show scarcity in a restaurant but i dont think there should be a difference. This is my own question, is there any distinction between scarcity and necessity . Typically people have a certain category and things they need to do from one side to another, is there a distinction between those some might say is not necessary . Is talks about the necessity circumstances apply but didnt have to go on this trip in the first place. You have to engage on a commercially related field. He look at the act of 1875, it applies to places of public nuisance. Whatever you say about public amusement, it is not essential. I couldnt watch Office Reruns or something but how important it is, i dont think that fits the history. We have a question about current events, some believe after countrymen whether trump disregarded the available evidence, a significant Election Fraud and it will be limited so there might be a distinction between belief about the truth of what you are saying. Is about the truth, when you come into these that may relate to trump, not about the election but incitement to violence and that is a different category, before the instance there, did insight imminent walk . That is a different question. The trunk part will be interesting in defamation cases, what does he know and what does he believe . Part of this recklessness comes through in defamation law and its one reason Justice Thomas objected to it because the defamation law that says if you defame a public figure, the public figure and public official will show you knew the statements were false or acted with reckless disregard and reckless disregard for the truth is the recklessness part so the question comes in, if you are an isolated bubble of knowledge where you seriously believe one way and you dont know they are false, that is where that could come into play so didnt adopt, we have a clear objective test and wont take anything from this, thomas didnt like it for that reason and actual malice is legislatively driven by the Supreme Court and text history for adopting that standard will. More breathing room and a higher standard for this political speech. You can have a politician speaking, Harsh Criticism of government or law that can come to incitement without being there and we keep that line there. You buy that that it is more important to protect that . I endorse the standards that requirements for inciting or producing imminent walk with action and likely to result in the. If we talk about purpose or intent to do so, so i think that is good law to have out there. In First Amendment law, the standard doesnt have it, it is a one on one facetoface situation where they are likely to swing back and hate you. It doesnt matter what they saw or believed or anything. Obscenity law is knowledge in terms of possession so i have something that turns out to be of seeno from no requirement ing back and hit in the violence i intend or have purpose of leading people to commit violence and now true threats, this lower tier of recklessness, substantial disregard interpreted as threatening so we are all over the board or First Amendment basically. There is breathing space on this, its hard to see the breathing space. We need an open discussion about civil rights really aggressive courtship of the things that terrified people. They need breathing room to make certain mistakes. As we talked about the harm is the fear that engenders the disruption of that fear. Theres low value speech. Thats one of the reasons justice barrack pushes back. Lets go to question any auditorium. I see a hand back of their. Yes. And please state your name and affiliation as well. Tray, an attorney from fairfax. Regarding daschle apologized have a chance to read it, does anything in that implicate other theories of criminal liability like for instance, harassment . I told you stop calling me, i told you to stop posting my Facebook Page and yes your continued. Its a good question because counterfeit itself was a stalking case and not truly a true threats case. It happened to involve stocking. You can stock somebody without engaging in a true threat. I called the multiple times come hang up the phone. In other words, i follow them around but im not saying anything to them. That was when the issues some of the justices in particular sotomayor was concerned about. She stepped within the context of simply the context they had to address it in this case of a true threats case and then she wants a higher standard but if it comes down to pure stocking she would be okay with a mens rea standard. To answer your question no, its just limited particularly to the true threats doctrine. I should say this is a lasting, difference between defining a threat with a mens rea requirement and a statute and the First Amendment question. What the court was addressing was a First Amendment doctrine of true threats. What does it take to push it outside the scope of First Amendment, not the mens rea requirement that the statute might require. The court addressed the First Amendment not the statutory but it was very limited in terms of the true threats doctrine rather than harassment. More questions to ask question in the audience . Jonathan mitchell has a few of 1257 without Supreme Court should be able to reveal the application of state terms under constitutional doubt provision. Its kind of a wild theories like many of jonathan views. Its too bad 1257 is just constitution or nothing. Another question . I have a question for greg. Seems like the court distinguished between where adaptation is used correct me if you think i miss reading but its important a factor using this prints art as a cover of the magazine in the same way you might use the original photo and that perhaps if you put up the art in Museum Display where you wouldnt hospital original photos, that might be okay. Is that i took the opinion basically be making distinctions, not just the ons you can adapt it and how you can adapt it to where youre using those adaptations and the marketplace . Do you by the rule and you think that [inaudible] on his, i dont know. I wouldnt recommend reading sotomayor said opinion. Its just not a good opinion. Its not well written. If she is make a distinction, the distinction is stupid. Because the question, the fair use question, fair use and the one that the court was debating is nature and character of the use. Sotomayor kept saying well look, these are the same nature of character. This can be put in in a maga, that can be put in a magazine, whatever, right . The old test that they are all the same so, therefore, one is not a fair use. You say what if she didnt put in a magazine . What if you put in a museum . We can keep playing this can all you want. I can put a photographing museum as well, right . What sotomayor opinion majority, not just for after all, seven justices sun, six other justices signed on to this. There was a concurrent opinion but not concurrent judgment. The blame should really be shared. But whats sotomayor stewing, number one, its not a clear standard to whether or not one can both be put to the same use . At the same day you end up with its just all the way down, right . Just asking generali. Like a book and above a yy look, they have the same views. You can still telestrator for them. One more visually and the other against auditorily as you reach yourself or something. But they both tell the story but theyre clearly very different use. One mistake. Number two, theres a fourth criteria in the fourpart test which really does look at whether or not theres a substitution going on. Thats factor number four. Sotomayor basically double counts. I think a much better way of looking is saying okay asking whats the purpose of the allegedly fair use second . At a think the purpose look, the purpose of criticism, the purposes, terry, the purpose is education. So look when i was in high school i took this class called like great sinema and over did was come to class and watch movies and write papers on them. Thats a a nice class. It was great. If you didnt like the movie you could nap through it and pretend like, act like you knew what you were doing. But you guys had to write a paper about. High school paper. In any event the point, of course in order for me to write a paper about a movie i have to see the movie and the movie has to be shown to me. You could say look, into situations they could potentially be very useful although there are limits on that. Look, ever want to criticize your scientific articles and you to take this or that into account, well, this equation for this data or whatever is wrong and have to block quotes. Quote. Even though im taking your words, thats fair use. Some comedy on your work. But if im just using her work and be guessing, now its my work, right . Thats a very different point at is not because i can put in the same scientific journal because theyre competing with each other. The cows i am trying to present the outside world first for your eyes and then basically your eyes as as a bypass. Thats the problem. Did we consider putting the photograph in as fair use into the article . I could imagine that would be, Supreme Court did have any problem. Whos going to tell them no . Right. And to put it in color, right the printer is more advanced, i think back back in the 70d 80s they all had like grainy xerox pictures. This may be the first Supreme Court opinion or you have nudity in color in the photographs. In both of the two cases you address the court issue rather narrow opinion and a special of the transformative use purpose and character like you were saying warhol. The court unleashed is a was typically transformative . Isnt a comment on the use go . If interested in the two live crew pretty woman parody case. I think it was a lot of hope that the court would clean up this what is a transformers use and what are the standards, what is it . The court didnt go there. It made it worse. What . Made it worse. I think were disappointed. At for the bad spandrels otho did a good idea to have on the show, show them the chew toy, show them the jack daniels and say what you think . I dont know. Barking up the wrong tree. We have an online question for chris. Do you think colorado could require a business to put up a sign announcing services are good it wont provide a requirement also violate the First Amendment . I think it be sent like could you force lori smith to say no, we do not offer samesex wedding websites. Again under 14th amendment person. Terms terms of the scarcity, right, it would encourage people like oh, i see. The want to the next instead of having come in and have a 30second conversation or several minutes conversation first. I cannot lori smith she doesnt have a door. Its just a website. Theres just no scarcity at all. You just go to a different website. She would be required to have a little disclaimer on her website. I mean, i guess the question that i would ask would be, to what extent is that genuinely baking the competitors easier to find and avoid wasted time on the assumption that she would do, do other things. In lieu of anything like that i would think even the smallest imposition on her wouldnt have a justification. I would say you need have a justification for limiting somebodys some of these occupation freedoms. Im obviously not in the william optical world but if you got into a proper historically grounded protection for economic liberty, i think except asked whats the point of just telling desperate it cant be just like we want to shame lori smith. Thats not a legitimate interest. Theres the doctrine of what is it purely factual and noncontroversial disclosures within nowadays some states are sort of selectively, there may be noncontroversial information but the selectivity of the state of what purely factual information to the force you to disclose and what do they not . Can have an ideology writer. Was sotomayor is the same as like especially horrifying at the idea of somebody having a sign that says were only serving certain kinds of weddings, not others. The problem with that is you are allowed to get even if youre not in the business p i imagine like somebody walking down the street, door number one come some really were smoother Jack Phillips that only provide services for samesex or popsicle only for opposite sex weddings. Whatever to they can get the services for any kind of wedding. Door number three is like was gone out of business but has a little sign saying i support Jack Phillips and lori smith. They will be just as offended at that little square saying i used to do this until i was forced out of business because same message. Its just as comparing to peoples dignity as the one that is still in business but its just pure speech. Theres no reason at all to shut that down, other that i dont like your speech. The government cant do that. Once you make that decision i think getting additionally upset at the sign doesnt really make sense. I see a hand back there. Yes. Riley stevens, lj see. On this monopoly power scarcity think were talking about, there is a harm in being turned away, right . Is that just a we want, its not the argument would be stuck just that we want to disapprove of Jack Phillips are telling me hes a bad person. Its that people are going to get turned away, there is an injury there, and insult their that exists even if you go across the street and get the cake somewhere else, right . Its not quite as narrow and interest other think. It would have to be, conceivably there some sort of surprise issue but if you look at this in litigation involving Jack Phillips, these folks are looking for him. A lot of them. Conceivably you could have some sort of interest and not being surprise, in which case having a sign out front would redress that. A question from out there in the front roe. That might be a rationale that would require a sign. Let me follow up on that question. Roger with cato. The old common law, chris, something called an invitation to treat. Unless maybe you spoke to this in your article, but it arose in the context of where a merchant holds himself out as open to the public and, therefore, creates a kind of unilateral implicit contract. Therefore, cannot discriminate against the person come into his emporium, but then it becomes a question of invitation to treat, to discuss the terms and price the product and so forth. This in turn is used to distinguish in the modern context between perfectly open to sell a a cake with a rainbn it that was intended for say a childrens Birthday Party to a samesex couple, as to say from a special in future performance for a person who finds it religiously offensive, a muslim baker required to create say a a black bag required to create a cake with a confederate flag, and the like. And so the distinction is drawn between offtheshelf stuff and special performance in the future in order to draw some kind of line. Perhaps you could address that and believe it . Cases like cogs acknowledge there is a rule about serving all but its limited. A lot of 19 century some medication of blacks, a bunch of stuff they give one thing about the rule which is serving all commerce but they say for the rationale of this trip back to page appear turn back to pages and talk about called, talk about people in difficult circumstances, to trusty sorts of people. Right of that that would like to wrap up the panel there. Were going to take a ten minute break now, refreshes are available in the winter guard every might or no food or drink a lot in the auditorium. Well reconvene for panel three at 2 25 on the dot. Lets give a give a big round of applause for an excellent panel. Thanks a lot. [applause] thank you. Join us tonight for the premiere of cspans new series books the shaped america. In partnership with the library of congress we will explore ten books from American Literature that provoked thought, won awards, led to significant societal change and are still talked about today. This week we will feature common sense a 47 page pamphlet written by thomas paine in early 1776 at the height of tensions between the american colonies and great britain. Our guest richard bell history professor talks about how thomas paine through his battle strongly urge for american independence from the british monarchy and six months later the declaration of independence was signed. Watch books the shaped america featuring Thomas Paines common sense tonight at night eastern on cspan, cspan now or free mobile video app or online at cspan. Org. Also be sure to scan the qr code to our companion podcast we can learn more about the authors featured. A healthy democracy doesnt just look like this. It looks like this, what americans can see democracy at work, where citizens are truly informed, a republic thrives. Get informed straight from the source on cspan. Unfiltered, unbiased, word for word. From the Nations Capital to wherever you are. It does the opinion that matters most is your own. This is what democracy looks like. Cspan, powered by cable. Good morning, everyone. Just a few minutes ago i had the great pleasure of speaking to seven americans who are now free, free from their imprisonment or detention and iran, out of iran, out of prison, and now in doha, en route back to the United States to be reunited with their loved ones. Five of the seven of course seven unjustly detained, imprisoned and iran, some for years, two others have have been prevented from leaving iran. I spoke to them after they landed in doha. I can tell you that it was for them, for me, and emotional conversation. Its easy in the work that we do every day, sometimes to get lost in the abstractions of Foreign Policy relations with other countries, and forgetting the Human Element thats at the heart of everything we do. But today their freedom, the freedom of these americans for so long unjustly imprisoned and detained and iran mean some pretty basic things. It means that husbands and wives, fathers and children, grandparents can hug each other again, can see each other again, can be with each other again. So today i am grateful for. I want to thank a number of partners who have been so vital to helping us reach this day, take the our partners and amman, switzerland, qatar, the united kingdom, each has played a very Important Role in enabling us to free our fellow citizens. I would also like to thank an extraordinary team, state department and throughout the United States government, that is working to achieve this result for years now. As happy as are at the freedom of our fellow citizens, we also are thinking today about bob levens who is not among them and is presumed deceased. Bobs legacy, however, lives on. It does on powerfully in the levinson act which is given us new and important tools to help crackdown and the terror the practice of taking americans unlawfully come to try to turn them into political pawns, and to abuse the International System in that way. One of the things i heard in my conversation with our fellow citizens who are now free is their own determination, their own commitment, the own conviction to continuing this work come to making sure the americans who unjustly detained anywhere in world come home. To date under this administration we have now brought 30 americans home from laces around the world where they were being unjustly detained. That work will continue. At the same time we are going to be working every single day to take steps to make this practice more and more difficult, and more and more of a burden on those countries that engage in it, and youll see in the days ahead here in new york at the United Nations our efforts to work with other countries to do just that. For today, for this moment, its very good to be able to say that our fellow citizens are free after injuring some that think it would be difficult for any of us to imagine, that their families will soon have the back among them and that in this moment at least i have something very joyful to report. Finally, let me say that throughout this effort, throughout the work weve done to bring so many other americans home, President Biden has demonstrated that he is prepared to make tough and difficult decisions. I have no higher priority. The president has no higher priority than making sure that americans were unjustly detained anywhere can come home, and we will continue that work. Thank you. Based on the swap this week, will there be, are you expecting any indirect call for the iranians this week, intensive . Are not talked about dyer talks any sort of relaying messages . Thank you. Well, two things. First, let me be very clear that this process into engagements necessary to bring it about, the freedom of these unjustly detained americans, has always been a separate tract in our engagement or for that matter like an engagement with iran. Irrespective of what was happening or not happening, for example, in the average return to nuclear agreement, weve been focused on working individually to bring these americans will. So doesnt speak to anything else relationship. We continue to be determined to take whatever steps necessary to deal with actions by iran and whole host of areas that are profoundly objectionable and that many of the countries find objectionable. At the same time when it comes to perhaps the number one issue of concern which is Irans Nuclear program we continually diplomacy is the best way to get a sustainable effective result, when we had previously with the iran nuclear agreement, and will continue to see if there are opportunities for that in this moment. We are not engaged on that but well see in the future if there are opportunities but President Biden has been very clear that one way or another hes committed to ensuring that iran never acquire a nuclear weapon. [inaudible question] i wouldnt anticipate anything this week. We are focused today on the fact that these americans are now free after having endured something that i think most of us cant possibly imagine, in one case one of our fellow americans was imprisoned for eight years, unjustly, and thats what were focused on for today. [inaudible question] [inaudible question] in fact, we met with our gc colleagues, our fellow americans have not yet arrived in doha so we did want to get ahead of that process. Having said that, as i mentioned, two countries in particular played an absolute vital role to get us to this day, and that is im on an qatar. As with other members of the gcc, ive had occasion over the past many months to talk to them im on an qatar. Talking about the relationship with iran which is a child for each and everyone of them including for us. And to discuss in the context some of the efforts that were making to bring home are wrongfully detained americans. Can i want to speak for them but i think everyone is supportive of that effort. With regard to the resources, i think its very important to be very clear about exactly what this involved. As you know, this involves the access by iran to its own money, money that had accumulated in korean bank as result of oil sales to iran made which were lawful at the time though sales were made. And from day one our sanctions have clearly and indeed always exempt the use of resources for humanitarian purposes. Because our aim is not to harm the iranian people. Our problem, our profound problem is with the iranian regime. So from day one these iranian monies that were in a korean bank have always been available to iran to use for humanitarian purposes. But for a lot of technical reasons they were not able to access of those funds where they were. So the funds were moved to another bank where we have absolute oversight of how they are used, and they can only be used for humanitarian purposes. And we have absolute confidence in the process and in the system that is been set up. By the way, the previous administration, Administration Prior to ours, have set up a similar mechanism that was never used that exact for these kinds of purposes. So we are very confident that the funds, the iranian funds that have been made more easily available to iran as a result of the actions that we have taken will be used exclusively for humanitarian purposes, and we have the means and mechanisms to make sure that happens thanks very much. [inaudible question] joint as tonight for the premiere of cspans new series books that shaped america. In partnership with the library of congress we will explore ten books from American Literature that provoked thought, won awards, led to significant societal change, and are still talked about today. This week we will feature common sense, a 47 page pamphlet written by thomas paine in early 1776 at the height of tensions between the american colonies and great britain. Our guest richard bell history professor at the university of maryland talks about how thomas paine to his pamphlet strongly urged for american independence from the british monarchy and six months later the declaration of independence was